Citation Nr: 1339874 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-42 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for aseptic meningitis. 2. Entitlement to a rating in excess of 10 percent for degenerative lumbar spine disease. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. 4. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney at Law ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to January 1970 and from June 1970 to April 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2008 and April 2013 rating decisions by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). The matters of entitlement to increased ratings for degenerative lumbar spine disease and associated bilateral lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. An unappealed May 1972 rating decision denied the Veteran service connection for residuals of aseptic meningitis, based essentially on findings that there was no evidence the Veteran had any residuals of his in-service aseptic meningitis. 2. Evidence received since the May 1972 rating decision is cumulative or redundant of the evidence of record at the time of the May 1972 decision and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for aseptic meningitis. CONCLUSIONS OF LAW 1. The May 1972 rating decision that denied service connection for aseptic meningitis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013). 2. New and material evidence has not been received to reopen the claim of service connection for aseptic meningitis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must notify the claimant of the evidence and information that is necessary to establish his entitlement to service connection. In that regard, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Regarding the new and material aseptic meningitis claim, the Board finds that a November 2007 letter provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) and for claims to reopen in accordance with Kent, including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, private treatment records, and lay statements have been obtained. A medical opinion regarding the Veteran's aseptic meningitis is not required because new and material evidence to reopen the finally adjudicated claim has not been presented or secured. 38 C.F.R. § 3.159(c)(4)(iii). The Veteran has not indicated that there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. B. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in VA's electronic data storage system with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). New and Material Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Board finds that the Veteran has not submitted new and material evidence sufficient to reopen his claim for service connection for aseptic meningitis. Historically, a May 1972 rating decision denied the Veteran's claim for service connection for aseptic meningitis, essentially based on findings there was no current evidence of the disability. He did not appeal this decision and, as such, it became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for aseptic meningitis was received prior to the expiration of the appeal period stemming from the May 1972 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran's service treatment records show that from February 26, 1972 to March 6, 1972, the Veteran was hospitalized with complaints of retro-orbital pain for two days. A spinal tap revealed on opening pressure 17cm. of water. After 48 hours, signs of meningeal irritation subsided. Neurology consult agreed with the diagnosis of meningismus, viral etiology. After five days after being in the hospital, it was decided the Veteran was not bacterial, and treated pansinusitis (acute, seen on sinus series) with Penicillin. The Veteran was asymptomatic by day seven and there were no symptoms after 48 hours subsisting at home. The diagnoses were aseptic meningitis and acute pansinusitis. He was ultimately returned to duty. On March 1972 release from active duty report of medical examination, there was no evidence of aseptic meningitis on clinical evaluation. The evidence added to the record since the May 1972 rating decision includes no evidence or suggestion that the Veteran has, or has had during the appeal period, aseptic meningitis. While the evidence of record includes new evidence, the evidence is not material as it does not relate to an unestablished fact necessary to substantiate his claim. Specifically, the evidence added since the May 1972 rating decision does not include evidence of a current diagnosis of aseptic meningitis. Accordingly, as none of the evidence shows that the Veteran has, or has had during the appeal period, aseptic meningitis, and the Veteran does not allege that he has had such during the appeal period, the newly submitted evidence is not new and material, reasonable doubt does not apply, and the Veteran's appeal of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for aseptic meningitis is denied. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In closing, the Board notes that it appears the Veteran brought forth the claim of service connection for aseptic meningitis, at least in part, to receive service connection for his lumbar spine, to include as secondary to his aseptic meningitis. Significantly, he has already been awarded service connection (in an April 2013 rating decision) for degenerative lumbar spine disease, and associated bilateral lower extremity radiculopathy. To this extent, the Board finds the decision herein to be harmless to the Veteran as the benefit he was seeking has already been granted. ORDER New and material evidence having not been presented, the Veteran's claim of service connection for aseptic meningitis is not reopened, and the appeal is denied. REMAND In August 2013, the Veteran submitted a notice of disagreement with an April 2013 rating decision that granted service connection for degenerative lumbar spine disease and associated bilateral lower extremity radiculopathy. The RO has not issued a statement of the case in response to the notice of disagreement. Under these circumstances, the Board is required to remand the matters for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (2004). These matters are not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal after the statement of the case is issued. Accordingly, the case is REMANDED for the following action: Regarding the matters of entitlement to increased ratings for degenerative lumbar spine disease and associated bilateral lower extremity radiculopathy, the RO should issue an appropriate statement of the case in the matters. The Veteran should be advised of the time limit for perfecting an appeal, and afforded an opportunity to do so. If he timely perfects an appeal in the matters, they should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs